NH Supreme Court to take up issue of payment for legal services

By state law, poor defendants with court-appointed lawyers are entitled to apply for legal services such as expert witnesses and psychological evaluations.

But if they choose to retain their own lawyers instead, does the state still have to pay for those services?

The state Supreme Court will take up that question early next year when it considers the appeal of a Manchester woman who was charged with felony burglary and assault after she allegedly attacked her sister in 2012.

The case, which has drawn the attention of the state's defense bar and New Hampshire Civil Liberties Union, could have broad fiscal and constitutional implications for the state.

According to court documents, Heidi Brouillette was arrested on Nov. 11, 2012, after police said she broke into her sister's Manchester home and attacked her, saying she had learned that her boyfriend was cheating on her with the sister. She also allegedly smashed the windshield of her sister's car.

Brouillette qualified for a court-appointed lawyer, but later hired Manchester attorney Olivier Sakellarios, who gave her a deeply discounted rate. Sakellarios decided to pursue an insanity defense and applied for funds for a psychiatric evaluation of Brouillette, but a Hillsborough County Superior Court judge denied the request.

Because she had retained her own lawyer, Judge Kenneth Brown wrote, "an ability to pay is presumed." And he gave her a choice.

"The defendant may proceed with current counsel at her expense or, if she continues to qualify for court-appointed counsel, the Public Defender's Office will be reassigned and it then can determine whether services other than counsel are warranted."

Gilles Bissonnette is staff attorney for NHCLU, which filed a brief supporting Brouillette in response to a request by the Supreme Court for amicus briefs in the case. He said asking someone to make such a choice is "intolerable."

"It has been held not only by the U.S. Supreme Court but also by the New Hampshire Supreme Court that we don't ask defendants to choose between constitutional rights," he said.

The 6th Amendment gives defendants the right to the counsel of their choice, and under the 14th Amendment, indigent defendants are entitled to court-approved legal services, he said.

"And so to ask an indigent defendant, simply because he or she is poor, to fire the lawyer of his or her choice to obtain the constitutional right to secure state funds for experts is just an intolerable choice to put indigent defendants in and in fact violates fundamental fairness," he said.

Stephen Fuller, the senior assistant attorney general who is representing the state's position before the Supreme Court, did not return phone calls asking for comment. But in its brief, the state points to RSA 604-A:6, which authorizes investigative, expert or other defense services to indigent defendants in any criminal case "in which counsel has been appointed."

Limiting funds to defendants with appointed lawyers "does not offend an indigent defendant's right to effective representation, due process or equal protection," the state argued.

Andrew Schulman is president of the New Hampshire Association of Criminal Defense Lawyers, which also filed an amicus brief supporting Brouillette.

He said the NHCLU brief addressed the relevant constitutional issues, so his group focused its argument on the state law, which he said does not prevent the court from ordering services for poor defendants who have private lawyers.

"I think that the statute contains discretion, and it may lead to some highly individualized decisions," he said. "But the court's in that business."

Sakellarios, Brouillette's attorney, said the state law only addresses poor defendants who have court-appointed lawyers. "It doesn't preclude indigents with retained counsel," he said. "It's silent on that issue."

The right to expert services has nothing to do with who someone's lawyer is, he said. "The right exists and whether the state pays for it depends and hinges on indigency and whether the services you're asking for are necessary."

The Supreme Court's decision in the case will have implications not only for those who have lawyers willing to work pro bono or at reduced rates but also for defendants who choose to represent themselves, Schulman said.

"I just want the court to explain that this right exists," he said, noting judges "need guidance just as much as the litigants."

Christopher Keating is executive director of the state Judicial Council, which administers the state's Indigent Defense Fund. He said the law in question dates back to the early 1970s. At the time, he said, "it was a major victory for there to be collective agreement that indigent defendants should be entitled to court-appointed counsel, and they should be provided with all the necessary services to provide them with an adequate defense."

He said he would welcome the Legislature revisiting the law to clarify what services the state should pay for in cases such as Brouillette's or pro se defendants.

"I think that's entirely within the purview of the Legislature to do, and that would be an elegant solution to this."

Keating said he hopes the Supreme Court will address not only the constitutional questions in the Brouillette case but also the existing payment mechanism.

Last month, he sent a letter to the court stating that the $700,000 appropriated for legal services other than counsel for the 2014 fiscal year "will be insufficient to meet the anticipated demand for court-ordered services."

The Judicial Council "has no clear statutory authority" to expend funds other than for indigent defendants who are represented by appointed counsel, he wrote. And without that, the responsibility for paying for court-ordered services "may fall to the judicial branch."

There are precedents for the court ordering payment of expert services for defendants who have private lawyers, Keating said in an interview, notably the capital murder trial of Michael Addison, convicted of killing Manchester Police Officer Michael Briggs in 2006.

And while state law requires indigent defendants to repay the state for such legal services, it can be difficult to recover funds from individuals who are in prison, mentally ill or without income, he said.

"I just wanted to make sure that everyone was mindful that, quite apart from the question of whether Ms. Brouillette is entitled under the Constitution to these services that she says are necessary to an adequate defense, is the kind of mundane but, I think, critical question of who pays for those services," he said.

However, Bissonnette said the funding issue should not factor into the high court's decision. "Whether or not a constitutional right exists is not dependent on where the money comes from," he said.

Sakellarios agreed. "Irrespective of the state's ability to afford these things, poor people have to have the same right to defend themselves that rich people enjoy," he said. "You can't just say, 'Well, you're poor, so you can't present that defense.'"

He said the case has broader implications than what happens to his client. "It's my opinion that the government has the obligation to make sure that people are treated equally by the government," he said.